New technologies have created a grey area for companies, including the risk of violating the Telephone Consumer Protection Act (TCPA).
Kristy McAlister Brown, Alston & Bird partner and chair of the firm's Telecommunications & Technology and Privacy Litigation Practice teams, highlighted the rise in TCPA litigation and ways companies can mitigate risk.
“Many companies think of the TCPA as a statute that is only relevant to telemarketers. But the statute’s reach is not so limited. No company or industry is immune to the threat of TCPA class action litigation. We have seen class actions filed against a variety of entities, ranging from social networking sites and sports franchises to local pharmacies and community groups. The dramatic increase in TCPA lawsuits only underscores the need for all companies to familiarize themselves with the TCPA’s requirements,” Brown explained.
Brown also noted that “recognition by the FCC that TCPA liability should not attach simply as a result of an unknown [phone] number of reassignment would have broad-reaching impact and provide defendants with a good defense to TCPA claims arising from this scenario.”
According to Brown, if the FCC clarifies that the definition of an automatic telephone dialing system depends on usage rather than capacity, which clarification stands to reduce the number of viable TCPA claims and allow companies greater latitude with respect to dialing technologies.
“There is no ‘one size fits all’ remedy,” said Brown “But with focus and diligence, TCPA risk can be mitigated. Companies should be mindful of the FCC’s 2013 regulations, which require a higher level of consent for a telemarketing call.”